1704030 (Refugee) - [2021] AATA 3557

1704030 (Refugee) [2021] AATA 3557 (23 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1704030
COUNTRY OF REFERENCE:                   Albania
MEMBER:Paul Windsor
DATE:23 July 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 23 July 2021 at 10:55 am
CATCHWORDS
REFUGEE – Protection Visa – Albania – blood feud – death threats – significant harm from members of a rival family – mental health issues – relocation not reasonable –state protection not available – complementary protection criterion – decision under review remitted

LEGISLATION
Migration Act 1958, ss 36, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 22 February 2017 to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Albania, applied for the visa on 25 September 2014. A summary of relevant applicable law is at Attachment A.
In his Protection visa application the applicant indicated he was born on [date] in [Village 1] in the Shkoder district of Albania. He indicated he is of the Geg Ethnicity, the Catholic faith and has never married. He indicated he departed Albania legally on [date] May 2013 and arrived in Australia on [date] May 2013, entering on a student visa.[1]
[1] See Departmental file [deleted].
In his protection visa application the applicant indicated that, while he had not been harmed while in Albania, in Australia he received information from his father that a blood feud had started because his cousin killed a member of the [Name 1] family, and he should not return to Albania. He fears he will be kidnapped, tortured or killed by the people involved in the feud if he returns to Albania.
The Delegate refused to grant the visa finding the applicant’s evidence to be unreliable and his claim to fear serious or significant harm not credible or genuine.
The applicant applied to the Tribunal for review of this decision on 7 March 2017. He provided the Tribunal with a copy of the delegate’s decision record.[2]
[2] See the Tribunal file.
The applicant appeared before the Tribunal on 10 March 2021 to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1704030 (Refugee)

Details

AGLC: 1704030 (Refugee) [2021] AATA 3557
Case: [2021] AATA 3557
Decision Date: 23 July 2021

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a citizen of Albania. The applicant claimed to fear serious harm from members of a rival family due to a blood feud that had commenced following a murder. The applicant also asserted that he suffered from mental health issues and that relocation within Albania was not a reasonable option, nor was state protection available. The decision under review was made by the Tribunal.

The legal issues before the court were whether the applicant met the criteria for a protection visa under section 36(2)(aa) of the Migration Act 1958 (Cth), which relates to complementary protection grounds. This required the court to consider whether Australia had protection obligations towards the applicant, specifically assessing the applicant's well-founded fear of persecution due to serious harm, and whether such harm was systematic and discriminatory, and either official, officially tolerated, or uncontrollable by the authorities. The court also had to determine if the applicant could reasonably relocate within Albania and if the Albanian state was unable or unwilling to protect him.

The court considered evidence including the applicant's statement detailing the blood feud, a news article about the murder, official and religious certificates confirming the conflict and failed reconciliation attempts, and a declaration from the applicant's father. The father's declaration highlighted the police's inability to provide protection due to corruption and lack of force, and the family's isolation for self-preservation. The court was satisfied that the applicant had a well-founded fear of serious harm from the rival family, that the Albanian state was unable to protect him, and that relocation was not a reasonable option.

The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(aa) of the Migration Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant’s was represented by his Registered Migration Agent. The representative attended the hearing.CONSIDERATION OF CLAIMS AND EVIDENCESummary of claims The applicant provided an undated statement with the application. Additional matters relevant to his claims for protection raised in this statement are summarised as follows:·His family (parents, elder sister and younger brother) live in [Village 1] village in Albania, except his sister who is married and lives [overseas].·He decided to study [abroad] because he thought if he had [a] qualification it would be easier for him to get a good job [in] Albania.·He started his [course] in Australia on [date] June 2013 and finished on [date] February 2014. As he was not satisfied with [course] he achieved he decided to undertake a further [course]. He did not know, however, that he had a ‘no further stay condition’ (condition 8534) on his visa and therefore had to leave Australia on [date] April 2014.·On 8 April 2014 his father telephoned him to advise that his cousin, [Mr A], had killed [Mr B] and wounded [Mr C]. His father told him not to come back to Albania as a blood feud has started and the injured persons will take revenge according to the Kanun of Lek Dukagjini, placing his life at risk. They will kill every person of his family and his cousin’s family and he will be expected to take revenge and kill everyone from the [Name 1] family, which he does not want to do. They can kill him directly or indirectly, by paying a killer. He is also afraid they will take out a contract to have him kidnapped and held for ransom or humiliate and degrade him.·His cousin’s father is out of Albania and will not return because of fear. His aunt and two female cousins remaining in Albania are now not able to leave their house out of fear. The families are seen as one and his family also cannot leave the house for fear of being killed.·His father has tried to resolve the feud by contacting [organisations]. They have tried to speak with the [Name 1] family but have not been able to resolve the feud.·The Albanian state and police are not able to stop this phenomenon. Also included with the application was:·A copy of a news article (and English language translation), published by [a] news agency on [date] April 2014, detailing the murder of [Mr B] and wounding of [Mr C] by [Mr A] on [date] April 2014.·A copy of a ‘certificate’ (and English language translation), purportedly from [an official] of [local] Municipality, dated [date] August 2014, certifying that a conflict started between the [Name 2] and [Name 1] families on [date] April 2014 and that attempts to resolve the despite have failed, because members of the [Name 1] family refuse to reconcile as they ‘claim to avenge their blood by intending to kill a person of the [Name 2] family’.·A copy of a ‘certificate’ (and English language translation), purportedly from [a named person] of the Catholic Church in [location], [dated] August 2014, in similar terms.·A ‘Declaration’ by the applicant’s father, [Mr D], dated 21 July 2014, indicating that he informed his son of the claimed incident on [date] April 2014. He indicates that he has demanded help from the police, because some people said their ‘rival’ were coming around their house, but the police did not defend them because they are corrupted and do not ‘have such force’ to defend people’s lives. He also comments that they are ‘isolated’ to safeguard themselves from the revenge of the [Name 1] family.·A further, undated, statement from the applicant indicating that, while his residence in Australia is difficult, his father has asked him not to return to Albania because his life would be at risk there, where his parents, brother and relative suffer the ‘threatening of the damaged relative’.

Decision

Reasons for decision

The Tribunal is satisfied, therefore, that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).DECISION The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.Paul WindsorMemberATTACHMENT A Relevant law The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.Refugee criterion Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention). Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person. There are four key elements to the Convention definition. First, an applicant must be outside his or her country. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

Ratio Decidendi

Legal Principle Established

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